Monday, November 19, 2007

If Buyout Firms Are So Smart, Why Are They So Wrong?

ENOUGH already.Private equity firms have recently been reneging on their billion-dollar buyouts as if the deals came with a 30-day money-back guarantee. They don’t. But that hasn’t stopped the biggest firms from trying to bully — yes, let’s finally call it what it is — their way out of deals.For the last few months, private equity firms have repeatedly broken their word when breaking a deal, trying to place blame on big, bad investment banks that they said were holding them hostage by threatening to withdraw financing.It was an easy narrative to follow, but it obscured the truth: Private equity firms, widely hailed as the “smart money,” made some lousy deals in the second half of this year, and some are now having a bad case of buyer’s remorse. They have been more than happy to break the deals and let the banks be the fall guys.To be fair, the banks cut some pretty lousy deals themselves and have been applying pressure to their clients. But if you have spent time with buyout bosses, you know it’s hard to pressure them into doing something they don’t want to do in the first place.Witness the latest broken deal: Cerberus Capital Management, run by Stephen A. Feinberg, the powerful but intensely private financier, refused to complete its $4 billion acquisition of United Rentals unless the price was renegotiated downward. Cerberus didn’t even try to claim that United Rentals had suffered a “material adverse change” — the magic words that usually permit a buyer to walk away without a financial penalty — or that the banks were preventing it from completing the transaction.Cerberus provided no explanation other than that it was willing to forfeit its $100 million reverse breakup fee to walk away. In a letter seeking its corporate divorce, Cerberus said simply that “after giving the matter careful consideration,” it was “not prepared to proceed with the acquisition of URI on the terms contemplated by the agreement.”What? Yes, Cerberus just proved itself to be the ultimate flighty, hot-tempered partner.“Any target dealing with them in the future would now be irresponsible to agree to a reverse termination provision,” Steven M. Davidoff, a law professor at Wayne State University in Detroit, wrote of Cerberus on his blog.And what about reputational damage? It has again been brushed aside as a non-issue: apparently all is fair in love, war and private equity.Everyone repeats the same line: “There’s no question that this summer the world changed,” Leon Black, founder of Apollo Management, said this month at a conference for The Deal, a magazine.Well, yes, Mr. Black. The credit market did change; there is no question about that. But that doesn’t explain how private equity firms, whose entire business is premised on accurately forecasting a business’s potential and risk, called it wrong.It is almost laughable to hear the buyers of Home Depot’s supply unit contend that the housing market’s slump caused the business to deteriorate so far beyond their expectations that they had to renegotiate the deal they struck just months earlier. If the buyers didn’t see that coming — if that possibility wasn’t baked into the firms’ models — then shame on them.The same goes for J. Christopher Flowers and his effort to wiggle out of his acquisition of Sallie Mae. It is implausible that such a smart guy did not contemplate the possibility that federal legislation affecting Sallie Mae — some of which had already been introduced — might complicate the buyout.And then there was the aborted deal by Kohlberg Kravis Roberts and Goldman Sachs for Harman International Industries. Five months after they agreed to the deal, the firms said that Harman’s business had fallen off a cliff. This may have been the most valid of the broken deals because Harman broke certain conditions of the transaction, but it still raises the question: Unless Harman misled them — and no one has publicly claimed that — how did these blue-chip firms miss the forecast that much?Private equity investors — known as limited partners — have been quietly applauding the firms’ attempts to squirm out of potentially bad deals. And it is the firms’ fiduciary duty to return the highest dollar for their investors, which might argue for walking away. The advent of the reverse breakup fee, which limits the amount of money a firm has to pay to walk away, also provides buyout firms with a relatively cheap means of escape.BUT investors in private equity firms should still be asking why firms made some of these deals in the first place. When debt was cheap, the game was easy; everything was a good investment. But private equity investors are paying for better judgment than that. After all, most of these firms charge “success fees” for acquiring a business, in part to pay for their hard work identifying, studying and winning an auction. (A perverse incentive, I know.)So what’s the upshot?If broken deals haven’t hurt these firms’ reputations yet, they should. The broken deals will also dent their wallets, which may hurt more. Other fallout is sure to come. Sellers to buyout firms are going to demand higher premiums — they are already under pressure from shareholders to do so — and prohibitively high breakup fees. Contracts may be written even tighter, but they are already tight.Despite all of this, private equity firms seem to believe they have plenty of wiggle room. In many of the recently broken deals, they appear to have relied on litigation threats rather than contractual language when telling sellers they planned to back out.As the law firm Weil Gotshal & Manges recently noted in a briefing to clients, “even a weak, but plausible” argument that a material financial change has occurred “may provide a buyer with significant leverage in renegotiating a deal.”All of this is going to make outsize returns even harder to come by, at least until everyone has forgotten the lessons. As Mr. Black put it in his recent conference speech, “History has taught us that Wall Street has no institutional memory.”

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Jim Rench is a Partner in the law firm of Stark & Knoll Co., L.P.A., Akron, Ohio, where he is a member of the Corporate Practice Group.Mr. Rench received his undergraduate degree (B.S. in Business Administration - Accounting and Finance) from Miami University, Oxford, Ohio, and his law degree, (J.D., magna cum laude, Order of the Coif) from The Ohio State University, College of Law.Mr. Rench has enjoyed a Martindale-Hubbell rating of “av” for many years and has been recognized in Best Lawyers in America (Banking Law) since 1995 and in Ohio Super Lawyers (Business, General) since 2004 . He is a member of numerous Bar and professional associations, including the National Association of Corporate Directors and the Association for Corporate Growth.Mr. Rench has substantial experience representing clients in corporate and commercial matters, including entity formation and governance, securities and corporate finance, secured lending, and mergers and acquisitions.